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Anne Boleyn and then Katherine Howard thought they had married Henry VIII. Then he annulled them both, as he did with his first and fourth weddings, such that they were deemed to have been invalid from the start. However, he had these second and fifth Queens executed for treason in that they committed adultery whilst married to him, even whilst maintaining that they were not. Similarly, Henry absolutely insisted that the dispensation he obtained in made his first ceremony with Catalina de Aragon (above right) completely valid.

Perhaps Henry picked up this habit from his father who insisted that the rebel he sent to Tyburn in 1499 was guilty of treason, which could only apply if he was an English subject, whilst calling him “Perkin Warbeck” from the Low Countries?

Erwin Schrodinger (below left) would, of course understand perfectly. “My cat is alive and dead”. “Anne Boleyn and I were validly married and were not.” “”Perkin” was an English subject and a foreigner.“

This is the second of two articles I have written about treason. In the first article, I wrote about the Merciless Parliament of 1388 at which eighteen of king Richard II’s closest advisors and friends were tried by parliament and condemned as traitors, against the king’s wishes. In this article I am writing about the ‘Parliament of Devils’ (1459) at which twenty-nine of the kings subjects were attainted and condemned as traitors at the king’s command. Although both parliaments took place against a background of agitation for political reform, there is an important difference between them. In 1388 there was an identifiable judicial process to determine guilt before sentence was passed; whereas in 1459, the Yorkists were condemned as traitors without any previous judicial procedure. The judgement of the parliamentary lords had been replaced by the act of attainder.

Parliament had been the venue and the tribunal for hearing state trials since the reign of Edward I. In cases of high treason it was necessary to try the accused and obtain the judicial judgement of parliament as the kings high court. However, the deposition of Richard II changed all that. From the beginning of the fifteenth century, the judicial procedure all but disappeared.

The Attainder

An act of attainder is a pronouncement of sentence without a judicial determination of guilt. Although attainders have political connotations and were frequently, if not exclusively, used for political ends, the concept is not political in origin. The attainder has its provenance in the common law doctrine of ‘notoriety’. For example, the offence of levying war against the king would be considered notorious if many people had seen it in a battle. In such a case, notoriety acted as an instant conviction.[1] However, by the second half of the fourteenth century, notoriety no longer acted as an instant conviction. It was now considered to be the crown’s indictment, setting out the basis for a prosecution. By the turn of the fifteenth century, the use of notoriety had ceased altogether; the procedure having further changed into the act of attainder.[2] It was the Treason Act of 1351 that drove this process by changing the legal framework. In particular, it had given parliament the power to declare non-statutory offences as treason. That is what happened in 1388, where the grounds for conviction were basically ‘notoriety’. Parliament used its power to ‘declare’ treason as a prelude to a trial and the seizure of the traitors’ estates. Even though this was an unintentional consequence of the act, it set a precedent for others to follow

The sophistication and use of attainders developed by degrees during the first half of the fifteenth century. The act of attainder made against the rebel Jack Cade after his death is a landmark since it was felt necessary to extinguish his civil rights after his death. His offences of ‘imagining the king’s death’ and ‘traitorously levying men’ were not declared treason in 1451; it was simply asserted that they were treason. In 1453, this breach of procedure was remedied by a formal declaration in parliament.

The attainder of the deceased duke of Suffolk was another important case since it was bought by the lords and then by the commons, and resisted on both occasions by the king. Originally, the lord’s attempted to commit Suffolk for misprision in public office. However, this was defeated because the charges were too vague. The commons took on the case by bringing specific allegations of treason, which the king refused to accept on the basis that “treason was neither declared nor charged”.[3] Eventually, the king was forced to accept Suffolk’s impeachment on charges of misprision, but he used his prerogative to save Suffolk’s life. Notwithstanding Suffolk’s subsequent murder at sea, parliament further petitioned for a declaration of treason and forfeiture on the grounds that he had failed to make sufficient response to the impeachment. Although the king refused the petition, he took note of parliament’s formula and showed his own willingness to adapt and use it in 1459. From that date we see a distinct change in the nature and process of attainder. The context for that change was the disaffection caused by the king’s government during the 1450’s.

Context

When the duke York and the earls of Warwick and Salisbury fought the king’s army at St Albans in 1455 they committed treason. Only victory saved them from the consequences of their actions that day. However, the battle left a legacy of bitterness and hatred between the queen, the sons of the Lancastrian lords killed in the battle, and the duke York and his faction. It was a vendetta that neither Lancastrian nor Yorkist ideology was capable of settling for sixteen years.

Six months after St Albans the king had a mental breakdown. Owing to Henry’s incapacity, York was appointed Lord Protector. It was a short appointment as the king recovered his wits within three months. York resigned his position and retired to his northern stronghold. Meanwhile, Queen Margaret took the king, the court and the government administration to Coventry in the Lancastrian heartland. Given the enmity between the queen and York, the task of restoring effective government and preserving a workable balance of power fell on the unaligned nobility. They did their best to preserve loyalty to the king’s royal authority, whilst compromising wherever they could in the interests of unity. However, this became increasingly difficult as the queen’s grip on the king tightened[4]. Gradually, the feeling grew that the queen’s governance, no matter how partisan, was preferable to re-fighting St Alban’s: or worse.

Queen Margaret saw York as a threat to the throne, and an incorrigible rebel and traitor whom she was determined to crush. Eschewing any attempt to heal the wounds created by the rift, she prompted the Lancastrian regime to take an increasingly aggressive stance against York and his supporters. The loss of the protectorship had left York politically isolated, a situation that deteriorated further during 1456-57. First, the queen replaced the Chancellor, the Treasurer and the Lord Privy Seal with her own men. Next, she moved quickly to re-assert royal authority in South Wales at York’s expense. By 1458, York’s exclusion from mainstream English politics was almost complete. His standing as the senior royal duke and second in line to the throne was unsustainable unless he could curb the queen’s power. In March 1458, Henry returned to Westminster from Coventry, ostensibly to address the dissention and division in the realm. Unfortunately, his attempt to arbitrate the differences between Yorkists and Lancastrians was biased. It succeeded only in making matters worse. The subsequent ‘loveday’ at which York and Margaret walked from St Paul’s hand-in-hand was a futile sham. The queen was determined to destroy the Yorkists and they were determined to confront the king with their grievances

On the 24 June 1459, the king held a great council at Coventry. York, Warwick and Salisbury were summoned but did not attend.[5] Such was their mistrust that they would not attend in the absence proper guarantees of their safety. This mutual mistrust was at the heart of the country’s problem leading to war[6]. When the Council did meet, the three Yorkists were indicted for their absence at the instigation of the queen; however, the implication that they had committed treason is obvious.

Queen Margaret had been preparing for outright war in the king’s name for some time. By September 1459 the preparations were almost complete. The king was at Kenilworth with the main body of his army.[7] The queen was recruiting in Cheshire with the Prince of Wales. The military advantage was undoubtedly with the king’s forces. They were strong in numbers and concentrated in a central position; whereas, their opponents were weak in numbers and widely dispersed. York was at Ludlow on the Welsh Marches. Salisbury was two hundred miles away at Middleham in the Yorkshire Dales. Warwick was even further away across the English Channel in Calais. In theory at any rate, the royal army was well placed to manoeuvre on interior lines and defeat the Yorkists in detail. Sensing their peril, the Yorkist arranged to unite their retinues in the west midlands[8] and to put their case directly to the king from a position of relative security, if not strength.[9]

Blore heath and Ludford Bridge

The earl of Warwick landed at Kent in September. He was in a hurry with no time for recruiting sympathetic Kentishmen. Consequently he entered London on the 20 September with only ‘a few hundred’ professional soldiers from the Calais garrison.[10] The next day he left for Warwick and a rendezvous with his father and uncle[11]. Meanwhile; the earl of Salisbury with about five thousand men was on his way from Middleham. York was at Ludlow, nearest to the rendezvous. It is possible that Warwick’s march was ‘shadowed’ by the duke of Somerset’s retinue coming from the southwest and he (Warwick) was ‘forced north of the town and onto Ludlow’ having narrowly avoided a clash of arms with Somerset in the streets of Colehill near Coventry.[12] It may be, as Johnson insinuates, that Somerset was afraid to engage Warwick’s veterans[13].

While Warwick was in London, or soon after, Salisbury’s contingent was approaching Nottingham.[14] Warned of his approach, the king re-deployed his army to cover the Trent crossing, thereby, forcing Salisbury to change course westward towards Ludlow. The proximity of the king’s army and the enforced change of direction had put Salisbury in a tight spot since he was now between the queen/Prince of Wales with the Cheshire levies in front, and the main body of the royal army to his left rear. On the 23 September, Salisbury’s scouts spotted a large Lancastrian force marching to towards them.[15] The queen had detached Lord Audley with ten thousand men to block the Yorkist’s path. Salisbury tried to negotiate a peaceful way out of his difficulty but was unsuccessful. Battle was joined at 1pm and lasted for four hours. It was bitterly fought: however, many of Audley’s troops were green and no match for Salisbury’s northerners, hardened by years of skirmishing on the Anglo-Scottish border. Audley was tricked into leaving his strong defensive position to attack the Yorkists. He mounted two cavalry assaults and one infantry assault, all of which were repulsed. In the last infantry melee, Audley was cut down and the battle lost. Two thousand Lancastrians died in the battle and the close pursuit. Despite his victory, Salisbury was still in danger of being trapped; the king was closing in behind and the Prince of Wales’ remaining levies were nearby. Instead of pressing on to Ludlow immediately, Salisbury dallied on the battlefield. Luckily, the king’s tardiness enabled the Yorkists to slip away under cover of their artillery, which was fired by a lone friar.[16]

Although there was no fighting or politicking for the next fortnight, it would wrong to suggest, as Johnson does, that nothing much was happening. Both side were manoeuvring for an advantage. We can follow the royal army’s southward movements from the king’s itinerary for this period.[17] After combining his forces near Market Drayton (probably on the 25 or 26 September), the king marched it south towards Worcester via Walsall and Coleshill. According to the Parliamentary Roll this was arduous campaigning for Henry. He spent thirty days ‘in the field “…not resting two nights in the same place, except on Sundays’, and sometimes ‘resting in a bare field two nights in a row…in the cold season of the year”[18].

For their part, the Yorkists lords joined forces at Ludlow as soon as possible after Blore Heath: possibly on the 26 or 27 September. What they did next is certain. Their first joint action was to march the army from Ludlow to ‘the neighbourhood of Worcester’. Why they did this, is not so certain. They may have intended to block the king’s advance southward, which threatened their communication with the Southeast, where the most of their sympathisers were. Professor Goodman speculates that they took up a blocking position between Kidderminster and Worcester. [19] However, as soon as the king appeared at the head of his army and ’in guise of war’ (with his banner displayed), the three lords withdrew to Worcester. It wasn’t simply that they were outnumbered; the Yorkists were loath to fight the king’s army, as that would be treason. As if to emphasise their dilemma of whether to fight or not, York and his Neville relatives swore an oath of fellowship in Worcester Cathedral that — saving only their allegiance to the king — they would come to each other’s aid in time of need. They also took the opportunity to further reaffirm their loyalty and to compose an indenture of their grievances. The indenture was sent to the king through Garter King-At-Arms. Whether, the king saw the indenture we cannot say; however, his next action was unequivocal. He ordered the royal army to resume its advance on Worcester

York had no choice now but to retreat southwards.[20] He still baulked at fighting the king and it was necessary to maintain some distances between the two armies. However, York’s decision to cross the river Severn at Ledbury was the defining moment in this campaign since it meant abandoning any hope of escape to the south and the acceptance that he may have to fight for his life. The increasingly fragile Yorkist morale may have forced him to take refuge in the more defensible terrain around Ludlow and the Welsh border. If he had to fight the king then it would be on ground of his own choosing. By the 9 October the Yorkists were at Ludlow and the king was at Leominster, a few miles away. The next day, the Yorkist wrote an open letter to the king protesting their innocence and setting out their case in detail[21] It was a last desperate plea to reason, but it was useless. By now, the fighting spirit in York’s army was non-existent. The king had offered pardon to those who surrendered to his grace within six days; nobody wanted to fight the king. It was the defection of Andrew Trollope who commanded the Calais garrison troops together with most, if not all, of his men (and with valuable intelligence about York’s battle plan) that decided the outcome at Ludford Bridge. York and Rutland fled to Ireland, Warwick, Salisbury and March fled to Calais. Their soldiers and the remainder of York’s family were left to the mercy of the king and queen.

From a military point of view it was a miserable campaign, notable only for the fact that neither side achieved their objective. Despite their numerical superiority and central position, the king’s army failed to defeat the Yorkists in detail, or to prevent the concentration of their retinues. Worse still, they allowed the Yorkist leaders to escape abroad. For their part, the Yorkists failed to convince the king — or anybody else — of their loyalty and good intentions, and were forced to flee ignominiously. However, from professor Bellamy’s point of view ’this pattern of events is of more than antiquarian interest’, since it explains the legal aspects of war. According to the international usages of war, the presence of a king at the forefront of his army with his banner displayed is tantamount to a declaration of war[22]. The Lancastrian keenness to get the monk-like Henry into harness, mounted on a warhorse at the front of his army, with the royal banner displayed was probably inspired by their knowledge of the law. Once these things were in place on the battlefield any attempt by the Yorkists to engage the royal army in battle would be treason (levying war against the king). It would enable the Yorkists’ possessions to be forfeit to the crown without the need for legal process. The sentence of attainder and forfeiture would extend to the Yorkists’ heirs in perpetuity. York’s refusal to stand and fight at Worcester and at Tewkesbury may also have been prompted by his knowledge of the law; it was consistent with his personal position throughout the 1450’s.

The Parliament of Devils

Parliament was summoned to meet at Coventry on the 20 November in anticipation of completing the annihilation of the House of York and the Yorkist cause. Queen Margaret must have thought that after three years of military and political preparations, her plans were about to bear fruit. York and his confederates were within her grasp; their capture or death in battle would ensure Lancastrian hegemony. Even though her enemies had escaped to fight another day, there was still much to play for. The parliamentary attainder of the Yorkists and the forfeiture of their estates would bring unprecedented wealth and power into the royal coffers, which could be exploited for the king’s benefit.[23]

The Coventry Parliament was packed with loyal Lancastrians to ensure royal success.[24] Nothing had been left to chance. The petition for attainder, which was presented to the king, was a carefully worded document in two parts. In all probability, it was drafted by the king’s own lawyers.[25] The first part contained an indictment of Yorkist disloyalty dating back to the beginning of the decade. First, York was accused of stirring Jack Cade to defy the king’s will and to incite rebellion in the realm, and of accroaching royal authority (1450). Second, York was forsworn; he broke his most solemn oath of loyalty and obedience to the king sworn at St Paul’s in 1452. Third, York conspired with the earls of Warwick and Salisbury to levy war on the king at St Albans and despite the king’s clemency he persisted with his wrongdoings. Fourth, the earl of Salisbury with several (named) confederates levied war on the king at Blore Heath. Finally, York and his (named) confederates levied war on the king at Ludford (1459).[26]

On the face of it, the government’s case seems a good one, which Johnson thinks has never been successfully refuted[27]. In truth, the facts are largely against York; he did break his oath of 1452 and he did fight a battle against the king’s army at St Alban’s. It is unlikely that he was behind Cade’s rebellion, but he exploited it to further his own political agenda. Furthermore, his constant criticism of the Henry’s advisors and of their appointment was a direct challenge to the royal prerogative, which possibly amounted to accroachment. Even so, the crown’s case was very far from being irresistible. First, the decision to proceed against the Yorkists by way of parliamentary attainder rather than using the king’s other proscriptive powers, suggests that the government had doubts about the strength of their case. It is a common misconception that the king needed a parliamentary attainder in order to seize the rebels’ possession. As professor Bellamy points out “ It was not the act [of attainder] that supplied the crown with its rights to the rebels’ possessions but the ancient royal prerogative which operated in time of open war.”[28] Bellamy is referring to the king’s power to convict the rebels in a state trial ‘on the king’s record’. That is to say, on the king’s testimony, without the need for corroborative evidence. Under this power, forfeiture would follow as part of the court judgement. The fact that the government did not follow this process raises questions about whether in law, a state of open war existed in 1459. The king was not present at Blore Heath, nor was the royal army engaged in battle at Worcester, Shrewsbury or Ludford. Moreover, the courts of justice remained open during September and October (In the past, the closing of the courts was taken as a sign of open war.). The Yorkist persistent declarations of their loyalty to the king were also problematic, since they struck a cord with those (and there were many) who were sympathetic to the York’s call for political reform but nonetheless demurred at using armed force against the king. These doubts raised the possibility in Lancastrian minds that at some point in the future any judgement obtained ‘by the kings record’ may be challenged, with concomitant wrangling and litigation over the disposal of forfeited estates. This risk would be avoided by a parliamentary declaration of treason and an act of attainder. This particular attainder was actually a clever legal document, which was not open to legal challenge and provided comprehensive provisions for the forfeiture of the Yorkists’ estates.

Another indication of Lancastrian anxiety is found in a contemporary manuscript entitled Somniumvigilantis.[29] The Somnium is a highly stylized narrative of a fictitious court case at which a Yorkist and a Lancastrian argue about justice and mercy. It was written prior to the Coventry parliament by a Lancastrian sympathiser and is partisan. And yet, it provides an insight into the issues exercising the minds of the good and the great at this time. The Yorkist is characterised as arrogant and boorish, bursting into court and demanding clemency. The Lancastrian, who is ‘courteous and just’, allows him a hearing. The Yorkists’ defence is put forward on several grounds. First, mercy is a necessary attribute in a king. That is true and probably explains why there is a subtext of justice and mercy in the Parliamentary Roll account of proceedings and why Henry saw fir to preserve his prerogative to deal with the rebels mercifully, as he saw fit. Second, the realm needed the nobility. I presume that this point is allied to the Yorkist’s third point, that the cause of reform was honourable. These two points together could be construed as arguing the necessity for nobility as a check to a tyrannical monarch. Of course, in the fifteenth century such a view was political dissent. Fourth, there were no specific charges against the Yorkists. This is a good point and may have been legally embarrassing for the crown: but it was not a case winner. Fifth, in view of the threat of a foreign invasion, this was not a good time to destroy those nobles favoured by the people to defend them. These grounds do scant justice to the actual Yorkist position and, predictably, the Lancastrian representative has no trouble crushing them to his own satisfaction. However, the amount of time and ink expended by the author in arguing that the cause of reform, whilst honourable, was an inadequate defence to insurrection suggests Lancastrian nervousness about the strength of their case.

Although the Yorkists were unable to defend the charges against them in parliament, their defence is well known to posterity, having been argued in extant correspondence, bills and indentures produced by them over the course of a decade. The bill published by Warwick on his way over from Calais and the open letter sent by the Yorkists to the king on the 10 October were simply the latest iterations of Yorkist complaints that hadn’t changed in substance since 1450 and which were always carefully drafted to avoid any imputation of treason.[30] Their defence was simple and had the benefit of consistency. The problems of the realm were caused by the king’s evil councillors and not by the king. He was innocent, and was being prevented from ruling, as he would have wished, by these same evil councillors. Ultimately, the Yorkists were compelled to act in the way they did by the intransigence and aggression of the king’s evil councillors. Kendall’s implication that the Yorkists approach had not changed since 1455 does scant justice to the longevity of their argument, which, in fact hadn’t actually changed since 1450. Kendall’s other point, that the repetition of the same narrow pattern of factional armed protest was not enthusing the general population to flock to the Yorkists’ banner, is more substantial.[31] As John Watts has pointed out, it was not that York and the Nevilles lacked imagination so much as the fact that the old arguments still seemed valid.[32] The dispute had not changed in nine years. York continued to blame the ministers and not the king, and the government continued to regard any discussion of its performance as treason. Furthermore, the queen could no more exercise royal authority on behalf of an ineffective king than could York during two protectorships. The underlying problem that the king in his innocence was unfit to rule, was rising to the surface with dangerous consequences for everyone. It would be irrational for York to suppose that he could change the outcome by using the same argument and the same method of protest, He must eventually realise that his problem was insoluble while Henry remained on the throne.

The second part of the attainder contained the provision for forfeiture of the Yorkists’ estates. It was the nub of the document, which in the words of York’s biographer “… bought all of York’s property into the king’s hands”.[33] That is not to mention all the property belonging to the earls of March, Warwick, Salisbury and Rutland, and all the property belonging to the twenty-four other Yorkists who were attainted, all of which fell into the king’s hands. This included property held in fee simple (which was usual) and property held in fee tail (which was unusual).[34] The severity of the forfeiture is an indication of the government’s determination to destroy the Yorkists and their cause. Insofar as the king was merciful, he extended his prerogative to Lord Powis, Walter Devereux and Sir Henry Radford by rejecting the claim for their lands and pardoning them. He also refused a request to attaint Thomas, Lord Stanley for his betrayal at Blore Heath.[35] However, he had no intention of pardoning York or the four earls. They had not submitted to the king’s grace and their destruction was to be permanent.

Little was granted away in fee simple or in fee tail; neither were many leasehold grants made and then only for short periods. The vast bulk of the forfeited estates were put in the charge of royal stewards who were given lifetime appointments and expected to produce a high income for the royal coffers (That is a clear indication of the permanence of the arrangements.). The estates of York and the Nevilles were absorbed into the royal demesne along with, in a few cases, their existing servants. Generally, established administration procedures were respected; although, some rationalization was necessary. For example, the estates of York and Salisbury in Essex and Suffolk were put in the charge of a single royal steward.[36] Despite the care of these arrangements the changes of ownership did not always go smoothly. There was some natural resentment of the new Lancastrian overlords, and the stewards did not all receive a warm welcome when they arrived at the forfeited estates. Johnson believes that, generally, the arrangements for the takeover were honourable; the ducal estate was not dismembered and in theory could be resurrected in the future. Moreover, whilst a pardon for York was unthinkable, Duchess Cicely did receive a maintenance grant from the king for her and her younger children. It was unfortunate for the royal party that the effectiveness of these arrangements was undermined by the fact that the Yorkist leaders were at large and expected to return to England.

Epilogue

The events of the summer and autumn of 1459 changed the course of English history. The Yorkist notion that the king was an innocent victim of his evil councillors was no longer tenable. Regardless of whether he was prevented from reforming the government or was simply unwilling to do so, Henry’s incapacity was obvious; he was unfit to rule. With the benefit of hindsight we can see that this was probably the moment when the duke of York became convinced that he must claim the throne to survive and to bring good governance to the realm. It was a course of action that involved the deposition of an anointed king and the disinheritance of his heir[37]. A protest for political reform was about to become a dynastic civil war.

The Parliament of Devils also had a constitutional importance in its own right. It provided a template for the destruction of the king’s political enemies that upset the balance of power between the king and the three estates of parliament. Since the twelfth century, the cohesion of the English lords had been a relatively effective counter to any royal tendency towards tyranny. Nevertheless, the lords had not themselves succeeded in transforming the government into an oligarchy, though they had tried to do so. And the commons were incapable of creating a democracy; although neither the king nor the lords could ignore them. In the words of professor Bellamy: “The late medieval law of treason was both a cause and a result of this balance and when it was tampered with there was a serious danger to constitutional government.” [38]

Acts of attainder were a method for popular participation in the ‘legal’ process. The lords or the commons could sponsor them, or the king could introduce them. Those bills put forward by the lords and by the commons were not always successful (e.g. the impeachment of Suffolk, 1450) those introduced by the king were never unsuccessful. The Parliament of Devils confirmed that royal power was paramount. The attainted Yorkists’ protest that they had not been allowed to answer the charges against them was unique. There is no evidence that either the lords or the commons opposed a bill of attainder by the king. From 1459, the attainder process was dominated by the royal prerogative: “It was openly acknowledged as a much surer way of getting a conviction for treason than by [the] common law and for this reason was used as often as possible. It is a form of treason in which the magnates and people play no part except when they were the victims.”[39]

[1] JG Bellamy –The Law of Treason in England in the Later Middle Ages (Cambridge 1970) pp.177-179.

[4] JS Davies (Editor) – An English Chronicle of the Reigns of Richard II, Henry IV, Henry V and Henry VI (Camden LXIV 1856) p.79 http://quod.lib.umich.edu/c/cme/acv5981.0001.001 Bertram Wolffe – Henry VI (Yale 2001 edition) pp.302-318. Wolffe disputes the conventional view that Henry was a saint-like innocent in the hands of his vengeful queen and her Lancastrian ‘gallants’. Facets of his character identified by Wolffe are: unforgiving, vindictive credulous, divisive, vacillating but stubborn and lacking political acumen. He argues that Henry was simply a bad king, who knew what he was doing: “if he was manipulated by the queen…he was manipulated willingly” (318). For a contrary opinion see RA Griffiths – The Reign of Henry VI (Sutton 1980): “ The [Yorkist] lords accurately divined that whatever his personal inclinations were…[Henry] was powerless in the hands of the queen and her advisors and it was they who were pursuing the vendetta against York and his Neville allies.” (819).

[5] Alison Hanham – John Benet’s Chronicle 1399-1462: an English translation (Palgrave Macmillan 2016) p.44: according to Benet, in addition to the absent Yorkist lords, the archbishop of Canterbury, the bishops of Ely and of Exeter, the earl of Arundel, Lord Bourchier and others failed to attend. All were indicted ‘ as a result of the advice of the queen’.

[7] Anthony Goodman – The Wars of the Roses: military activity and English society 1452-97 (Routledge and Kegan Paul 1981) pp.30, 237 note 57. Goodman cites Dr Colin Richmond (The Nobility and the Wars of the Roses 1459-61; Nottingham Medieval Studies, 21 [1977]). The following were rewarded for their service against the Yorkists: the dukes of Buckingham and Exeter, the earls of Arundel, Devon, Northumberland, Shrewsbury and Wiltshire, Viscount Beaumont and ‘at least ten barons of parliament’. In addition, the king had Somerset’s retinue arriving from the south-west, plus the remainder of Northumberland’s northern contingent (Thomas Percy, Lord Egremont and the earl of Westmorland). The queen was recruiting troops in Cheshire and Lancashire with the Prince of Wales (nominally commanded by the infant Prince but actually commanded by the queen.).

[10] Griffiths (pp. 817, 847 note 275) puts the figure as ‘variously 300-500 men’; Johnson (p186) says he had a significant force’. It is difficult to know what Johnson means by ‘significant’ but with the benefit of hindsight we can see that Warwick’s retinue was probably counted in three figures. However, their significance may have been their military quality and not their numbers. Goodman (p.26) credits Warwick with ‘a few hundred men’.

[11] Goodman (p26). This is plausible; nevertheless, it is only conjecture.

[13] Johnson p.187 and Goodman p.236 note 35. Goodman finds it difficult to account for Warwick’s presence in Coleshill. He might have been acting independently against the king as Goodman suggests; though, it seems unlikely since he was weak in numbers and in the midst of the king’s army. It is also possible (I put it no higher) that he was looking for the quickest way out of a trap, with the intention of making his way across country to Ludlow. By now he would have realised the impossibility of the Yorkists’ meeting at Warwick.

[14] Goodman p.236, note 40, provides a useful summary of the contemporary estimates of Salisbury’s numbers, which I need not repeat. I personally think he had between 3000 and 5000 men, with an artillery train. His contingent was probably the most effective fighting force at the Yorkists disposal.

[15] Goodman p.236, note 40 lists the various chronicle estimates of the comparative size of the respective armies. Suffice to say that Salisbury was outnumbered, perhaps by 2:1

[16] Gregory’s Chronicle, ibid: see also David Smurthwaite – The complete Guide to the Battlefields of Britain (Michael Joseph Ltd 1984) p.101.

[17] Wolffe, p.371: Wolffe’s biography has been much criticised; however, the royal itinerary he has constructed from the kings signet correspondence, household accounts, privy seal documents and royal warrants was invaluable in helping me to understand these events.

[19] English Chronicle pp.80-81; Benet p.44 and Goodman p.29: for a different interpretation see Trevor Royle- The Wars of the Roses (Abacus 2010) pp. 242-243. Royle reverses the roles: he suggests that it was the king who intercepted the Yorkists on their march to London. Once York saw the king’s army in position and the way blocked, he retreated to Worcester. It is not an impossible scenario, but it is unlikely. I can think of no good reason why York would march his army north towards the king’s host, if he was actually trying to escape to the southeast. Goodman’s analysis seems far more plausible to me.

[20] Johnson p.188 thinks it is ‘odd’ that York retreated to Ludlow via Tewkesbury since it implied he was trying to escape to the south, a manoeuvre that Henry successfully blocked. My interpretation of Yorks reasoning is slightly different. First, Henry was obviously not in close pursuit of York; we have no record of skirmishing between the forces; moreover, Henry’s whole command had been ‘sluggish’. His failure to concentrate his forces quickly had allowed Salisbury to escape the trap at Blore Heath. Second, York may well have been trying to escape southwards, but changed his mind in light of his army’s fragile morale (The Yorkist soldiers were wary of fighting their anointed king and the offer of a pardon was tempting.). Ludlow offered a good position if the Yorkists had to fight.

[21] English Chronicle pp. 81,82; this sets out Yorks letter in full, which I would not repeat here, as the Chronicle is freely available on line for anybody interested to read.

[23] Griffiths pp. 825-826 It was never a realistic prospect that this wealth would be used to support the public exchequer or frittered away on injudicious grants to royal friends. Given royal impecuniosity this vast wealth was more likely to find its way into the king’s purse.

[24] Griffiths p.823; “ Among the 169 members whose identity is reasonably certain (out of 260), one has to search long and hard to find a single servant of either York or Neville”. In Griffiths’ opinion the election was engineered in favour of known loyalists (an opinion echoed by Bellamy (p.147). Nevertheless, Rosemary Horrox doesn’t believe it was an aggressively partisan assembly. She ‘deduces this from the care taken to justify the severe measures taken’ (PROME p.448).

[25] See Bellamy at p.197 and Griffiths at p.824; the authorities disagree as to who precisely drafted the act of attainder.

[26] Even though, York and the other leaders fled, the Yorkists ‘fired their guns at the king’.

[30] Margaret Kekewich and others (Eds) – The Politics of 15th Century England: John Vale’s Book (Sutton Publishing and the Richard III & Yorkist History Trust 1995) P.27. The Articles if the earl of Warwick on his way from Calais to Ludlow, 1459 (British Library Manuscript Additional 48031A ff. 137-138) is published for the first time at pp. 208-209. See also, Gregory’s Chronicle, ibid: Johnson p.188, and Griffiths p. 817

[34] The SOED, 5th edition (2005); Fee simple’ is defined as the ‘Tenure of a heritable estate in land etc. forever and without restriction to any particular class of heirs. Fee tail is defined as ‘Tenure of a heritable estate entailed or restricted to some particular class of heirs of the person to whom it is granted’.

[35]. The king ordered Thomas Lord Stanley with his northern retinue to join the queen/Prince of Wales’ levies in Cheshire; but Stanley, who was in secret correspondence with Salisbury, prevaricated and did not arrive in time to fight at Blore Heath. His northern troopers were sorely missed by the green Lancastrians and it is clear that feeling against Stanley ran high in royal circles. However, in typical fashion he managed to rehabilitate himself with the king so that he was not included in the attainder. The king refused to grant a separate petition for Stanley’s attainder; probably, because his support in the northwest was essential after York escaped to Ireland. William Stanley who fought with Salisbury at Blore Heath was attainted. The Stanley’s did not just ‘sit on the fence’; they straddled both sides of it.

[36] Almost all of this section is taken from Griffiths (p.826) and Johnson (pp.192-194).

[37] My opinion about York’s intention is conjecture; though his subsequent attempt to claim the throne suggests it is plausible. Unfortunately, as the events of 1460 were to show, York had misjudged the mood of the country. Even though there was dissatisfaction with the government’s performance, there was little appetite for Henry’s deposition.

Introduction

Treason is a terrible crime. It denotes a betrayal so wicked as to be unforgivable. In medieval England a traitor was executed with the maximum of corporeal pain and all his goods and chattels were forfeited to the crown, thus disinheriting his heirs and successors forever. Henry de Bracton a thirteenth century English jurist, held that it was ‘scarcely permissible for the (traitor’s) heirs to live’ since they too were contaminated by his deeds. Bracton, who had a penchant for Roman law, may well have been thinking of Imperial Roman practice. By the fifteenth century, treason, or more precisely the law of treason, was the legal-political tool of choice for kings and over ambitious subjects who wished to destroy each other. Acts of treason formed the backdrop of English history from Magna Carta until the Glorious Revolution. Kings have been destroyed and dynasties bought low by treason. This was especially true during the civil wars of the fifteenth and sixteenth centuries, which began and ended in treason. The Victorian historian Frederic Maitland was surely right to describe treason as a crime with a history all of its own.

This is a story about treason; not the wicked type but the political treason of offending against the king’s most powerful subjects. In 1388, an English parliament condemned eighteen of the king’s closest ministers and advisors for such treasons. Their trials by the lords in parliament were controversial and raised several legal and constitutional issues of some consequence: including, the status of parliament, the judicial function of parliament, due process and parliament’s rights and privileges to conduct state trials. The trials also challenged the king’s prerogative to do as he liked. But above all, the Merciless Parliament was a catalyst for a chain of events leading to the deposition of an anointed king, which changed the course of English history. However, before I tell my story, it might be useful to explain a little about the concept of treason.

Nowadays, treason is defined by the Treason Act 1351.[1] Prior to the Act there was no universally accepted definition of treason, nor much distinction between treasonable offences and everyday felonies. The king’s justices sitting with a ‘grand’ jury had to construe whether or not a particular crime was treason on a case-by-case basis. Inevitably, there were inconsistencies of interpretation. The law was uncertain and arbitrary; many men went to a traitor’s death and forfeited their estates for offences that were not treasonable. The most obvious and best example of this is the general offence of accroaching royal authority. Essentially, this is a political offence and not obviously treason (though it would depend on the circumstances). In the reigns of Edward II and Edward III, the courts had a pronounced tendency to construe even minor common law accroaching as high treason. It was a practice that had destroyed many noble (and loyal) families. Predictably, there was an aristocratic clamour for a narrow, fixed definition of treason. In 1351, Edward III felt able to assent to a petition from parliament proposing the appropriate legislation. In the opinion of professor Bellamy, the Treason Act 1351 is second only to Magna Carta in its constitutional and legal importance.[2] The Act itself raises many issues that I cannot explore in this article. From my perspective the two important points to note are: first, the conservative definition of treason, which viewed high treason entirely as offences against the monarch or the royal family (It is still treason to cuckold the heir to the throne.) and second, parliament’s reserved power to declare non-statutory treason in doubtful cases.

The Merciless Parliament convened on the 3 February 1388 and sat for four months. It was the longest parliamentary sitting before the fifteenth century. Its common title derives from the fact that virtually all-parliamentary business was given over to a violent purge of the king Richard II’s advisors and household servants. The king was systematically humiliated; he was forced to witness the condemnation of his friend and he had no choice but to acquiesce in their doom. It was the nadir of his life thus far. Even though he was twenty-one he was prevented from exercising his royal authority or his prerogative, or even his royal grace to save at least one man from death. For all practical purposes he was still regarded as a boy and too immature to govern unsupervised. His royal authority and his royal prestige were in ruins. It was a trauma he never forgot.

Context

The situation in in 1388 has to be seen in the context of power struggle between a rebellious teenage king trying to assert his royal authority and his older councillors anxious to preserve their own status and influence. Richard was headstrong and clearly had an authoritarian vision of kingship. Even as a fourteen year-old, he had approved of the brutal reprisals taken against the rebels of 1381. He was called to book on at least one occasion for attempting to make the offence of treason a prerogative one.[3] He was unfortunate to succeed to the throne at a time when England’s fortunes were in decline and when he was too young to be taken seriously. The failing war with France had resumed, the burden of taxation was excessive on those who could afford to pay it and the country was experiencing the socio–economic consequences of the Black Death. There was widespread social discontent, of which the Peasants’ Revolt of 1381 was the most extreme expression. Even so, there were concerns about his behaviour, and his readiness and ability to rule wisely with prudence. He preferred the advice of young fops to that of his ‘natural councillors’ and he longed to exercise personal rule. However, his ‘insolence’ and extravagance was such that far from allowing him personal rule, parliament was intent on clipping his wings. It was the parliament of 1385 and the ‘Wonderful Parliament’ of 1386 that set the scene for a showdown in 1388.

Parliament’s efforts to control the burgeoning cost of the royal household and to install some fiscal discipline into the government began in 1385. They appointed a commission of twelve councillors to review the running of the king’s household and to reform the government’s finances.[4] This was, in fact, a continuation of the minority council that ruled in the king’s name during his tender years; the problem was that Richard was now aged seventeen and well old enough by medieval standards to exercise personal rule. Richard accepted some of the proposed reforms with bad grace; but he rejected outright any attempt by parliament to curb his authority or prerogative. He pointed out that the running of the royal household and the appointment of ministers were matters for him alone and he would do as he pleased. Consequently, neither the king nor his ministers took any active steps to implement Parliament’s directions. It was a predictable reaction, but a foolish one since he needed the cooperation of parliament for his next grant of taxation. At some point he would have to summon them and they were bound to raise this issue.

When Parliament next met, on the 1 October 1386, it was against the background of a threatened French invasion. William de la Pole, earl of Suffolk and the king’s Chancellor opened parliament by requesting a huge grant of taxation to meet the royal commitments.[5] Unsurprisingly, the commons rejected this request and together with the lords petitioned ‘with one assent’ for Suffolk’s dismissal as Chancellor. Thomas duke of Gloucester Thomas earl of Warwick and Richard earl of Arundel were foremost among the lords demanding Suffolk’s dismissal.[6] Once it became clear that Parliament’s intended to impeach Suffolk for dereliction of duty and embezzlement,[7] the furious king retired to his palace at Eltham in ‘high dudgeon’, exclaiming that he would not sack a scullery boy at parliament’s request. The duke of Gloucester with Thomas Arundel bishop of Ely, travelled to Eltham to speak to him. Eventually, Richard was forced to return to parliament and to accept the dismissal and impeachment of his Chancellor, and the supervision of the continual council. It was only the scarcely concealed threat of deposition that convinced him to swallow his pride.[8]

The Judges Questions

The dismissal and impeachment of Suffolk was a direct challenge to the king’s royal authority and prerogative, which was compounded by the continuance of a minority council to supervise his rule. It was indeed a damning verdict by parliament on the king’s fitness to rule. The situation was all the more chastening since Richard’s ‘tender years’ were behind him: he was now twenty-one. Although he knew he had to bend to parliament’s will, the king never accepted their right to limit or even to question his regality in any way. He took every opportunity to promote his regality and to demean the ‘continual council’s’ status. Suffolk was released from custody and reinstated by Christmas, and the king moved the court to the midlands to avoid the council’s oversight.

In August 1387 he summoned Chief Justice Robert Tresilian and his justices from the King’s Bench to meetings at Shrewsbury and Nottingham. He needed legal opinion on the actions of the Wonderful Parliament. There is nothing intrinsically unusual or sinister about Richard’s request for legal advice. The justices and particularly, the sergeants at law were continually providing the government with technical legal advice on procedural rules, and fiscal and feudal law. However, the ten questions, which were carefully drafted for the king by his personal lawyers were of an altogether different nature; they, went to the burning issue of the day: the king’s right to personal rule by prerogative and the subordination of parliament to the king’s will.[9] They covered three main points: first, whether the appointment of the continual council was derogatory to the king’s regality, second, whether the king controlled parliament’s order of business and whether he could summon and dismiss it at his will, and third, whether the impeachment of Suffolk was lawful. The importance of this process and these questions lies in the king’s attempt to re-define a political problem as a legal one, for which (he hoped) his lawyers would provide a solution.

The judges’ answers gave the king everything he wanted. The continual council was derogatory to the king’s regality and therefore unlawful. Furthermore, it was the king’s prerogative to choose his ministers, who were responsible to him and not to parliament. It was the king who set the order of business; nothing could be discussed or passed without his assent, and it was for the king to summon and dismiss parliament at his will. Finally, the impeachment of Suffolk was unlawful.[10] The judges held back from actually declaring the actions of the Wonderful Parliament to be treason[11]; though they did consider them to be capital offences punishable as traitors. This opinion was a complete vindication of Richard’s view of kingship and provided him with a ‘legal’ foundation for his revanche.

Although the judges would later say that that were coerced into giving these answers, they seem, on the face of it, to have been given in good faith. Their interpretation of the law at that time is not obviously wrong. It would be difficult to argue as a matter of law that the continual council was not prejudicial to the royal prerogative, or that historically, it was not for the king to arrange the business of parliament, and that he might not dissolve it at his will, or that as the impeachment of the king’s officials had been repudiated in 1377, the judgement against Suffolk was invalid. These are opinions that any other lawyer trained in the common law might have given to the king if asked.

The crisis occurred during the autumn/winter of 1387. Warned of the judges’ opinion [12] and their insinuation of treason, Gloucester, Warwick and Arundel combined their retinues near London and sought a meeting with the king. On the 17 November they told Richard of their intention to appeal Robert de Vere duke of Ireland, Michael de la Pole earl of Suffolk, Alexander Neville, archbishop of York, Robert Tresilian, Chief Justice and Nicholas Brembre erstwhile mayor of London, for treason. Richard set aside a date in February for parliament to hear the appeals. Shortly thereafter, Thomas Mowbray earl of Norfolk and Henry Bolingbroke earl of Derby joined Gloucester, Warwick and Arundel as the lords appellant.

The speed and defiance of the lords appellant’s response panicked the king and his friends. De Vere went north to Cheshire, to raise a royal army, while the king remained at Windsor. After raising 3-4000 troops, de Vere moved south to rescue the king. Warned by their scouts of de Vere’s approach, the lords appellant intercepted and surrounded him at Radcot Bridge on the river Thames. In thick fog the royal army was routed. De Vere barely escaped to France with his life. Meanwhile, the earl of Suffolk and the archbishop of York fled to France. Richard, aware that de Vere’s defeat had ended his last hope of resisting the lords appellant, moved to the greater security of the Tower of London. There, on the 30 December they came to see him accompanied by five hundred soldiers. Although the main chronicles (Walsingham, Knighton and Westminster) differ on the detail, they agree about the main points discussed. Richard was reprimanded and possibly threatened with deposition. Eventually a modus vivendi was achieved preserving the king’s regality and serving the lords appellants’ purposes. However, the obscure Lancastrian chronicler of Whalley Abbey contradicts that version of events. According to his narrative, Richard was ‘deprived of his throne’ for three days and was only reinstated due to a disagreement between Gloucester and Derby about the succession.[13]

Whalley is the only chronicler who describes Richard’s actual deposition; however, it is corroborated by Gloucester himself. In his signed confession, written in Calais shortly after his own arrest for treason in 1397. Gloucester, said this: “…insomuch as I was present when the question of deposition of my lord was discussed, I acknowledge that we did, for two or three days, agree to do this, but then we performed our homageand our oaths to him and restored him to as high estate as he had beenpreviously.”[14] In professor Saul’s opinion, the fact that ‘no letters for the last three days of December were entered in the close and pattern rolls’ suggests that Richard was probably deposed and a few days later he was restored to the throne.[15]

The Merciless Parliament

The trials began on the 3 February 1388. First up were the main appellees: Robert de Vere, William de la Pole, Alexander Neville, Robert Tresilian and Nicholas Brembre. Between them, they faced a total of thirty-nine articles containing the details of their offences. Four articles related to their undue influence over the king; thirteen, alleged that they abused their power for personal gain by taking advantage of the king’s tender years; fifteen, alleged that they encouraged the king to defy his natural councillors and the remainder claimed that the appellees encouraged the king to take military action against his loyal lords and especially the three senior lords appellant. It should be noted, however, that not everybody appeared in every article.

Unfortunately, four of the appellees were absent when the trials began. De Vere, de la Pole and Neville were beyond the jurisdiction, and Tresilian was in hiding.[16] Only Nicholas Brembre was in custody at the start. The king and the lords appellant had already agreed that parliament would hear the appeal. Parliament was by 1388, well established as the proper tribunal for state trials;[17] similarly, the judicial function of the parliamentary lords was well recognised.[18] It is not unreasonable, therefore, to assume that by instituting proceedings by way of an appeal, the lords appellant envisaged a trial conducted under common law rules. However, there was a serious objection to continuing against the absent appellees under the common law, since in that jurisdiction they could not be condemned in their absence. Given the obvious political dimension to these proceedings, it would be naïve to think that the lords appellant could withdraw their appeal and expect to survive the outcome. Parliament’s political imperative was to condemn and execute the main appellees as quickly as possible. That being so, and on the king’s behalf, the lords appellant asked a panel of judges and lawyers how they should proceed.[19]

The judges and the other lawyers ducked the question; they merely confirmed what everybody already knew; namely, that this appeal was not according to the civil or the common law.[20] Their actual reply is recorded in the Parliamentary Roll: “…[they] informed the said lords of parliament that they had seen and well understood the tenor of the said appeal and they said that the same appeal had not been made or affirmed in accordance with the procedure required by either [the civil or the common] law.”[21] Much — perhaps overmuch — has been made of this reply and it is worth considering it in a little detail before judging its meaning and its importance. First, it is only legal advice; it does not have the force of law. Second, it is only relevant if one accepts the premise that parliament was legally bound by the relevant civil and/or common law. Third, it does not state that appeal proceedings before parliament were unlawful per se, nor should we infer that that is what they meant; it is merely alluding to a defect in this appeal viewed from the perspective of the existing civil and common law. Fourth, it is a cautious answer: the judges and other lawyers well understood that this was a politically loaded question (‘the tenor of the appeal’). It is inconceivable that they would knowingly commit themselves to recommending a particular course of action that might alienate either the king or the five most powerful subjects in the realm. They only had to consider the predicament of the judges who had denounced the Wonderful Parliament to see the danger of giving a ‘wrong’ opinion. Accordingly, their answer was as neutral as they could make it, so as not to offend anyone and to ensure that they could not be held responsible for what happened next. In other words the panel baulked at circumscribing the judicial power of the parliamentary lords or upsetting the king.

The lords’ reaction to this legal opinion has received a mixed press. Nigel Saul described parliament’s subsequent pronouncement of its privileges and authority as ‘legal sleight of hand’, which implied that ‘parliament could make-up the rules up as it went along’.[22] Chris Givern-Wilson suggested that the panel’s answer cast doubt on the legality of this appeal procedure, which he describes as ‘legally dubious at best’. Of course, these opinions are only sustainable if one accepts the premise that parliament as a court of law was inferior to the courts of civil and common law, and therefore bound by their procedure and law. Stanley Chrimes takes a more ‘constitutional’ line; he described parliaments declaration as the first ‘ explicit theory of parliament as the king’s high court’.[23] On any view, parliament can scarcely have ever made a more assertive or categorical assertion of its own rights and privileges, and its judicial primacy as the superior English court of justice. It might be useful at this point to reflect on what parliament actually said and did. “…in the case of so high a crime as that alleged in this appeal, which touched the person of the king and the estate of his kingdom perpetrated by persons who are peers of the realm and others, the case should be conducted nowhere other than in parliament, not by any other law than the law and usages of parliament and to their franchise and liberty of the ancient custom of parliament to be judges in such a case with the assent of the king. And that (being) so, it will be done in this instance by decision of parliament because the kingdom of England was never in the past, nor by the will of the king our said lord and the lords of parliament ever would be ruled or governed by the civil law; and also it is their intention not to rule or govern so high a case as this appeal, which will neither be tried or determined elsewhere than in parliament, as was said by the course, process and procedure practiced in any lower court or place within the same kingdom, which courts and places are not executors of the ancient laws and customs of the kingdom and the ordinances and decrees of parliament. And the same lords of parliament were advised by the assent of the king our said lord, that this appeal should be made and affirmed well and duly and the process would be good and effectual according to the laws and course of parliament and thus they should decide and adjudge it” ”[24] Personally, I cannot detect any impropriety in this assertion. Far from being ‘legal sleight of hand’, their pronouncement is an eloquent exposition of parliament’s judicial and jurisdictional status then and now, which provided a legal foundation for the future development of parliamentary law and procedures.

Nonetheless, it is true that there was an element of trial and error in the conduct of these proceedings. It was a novel situation for which, as yet, parliament had neither a settled law nor a settled procedure. In the wider interests of justice, the absent appellees could not be allowed evade their trial by absconding, since that bought the rule of law into disrepute. Parliament therefore adopted a hybrid procedure borrowed from the civil law. The appellees were summoned to appear for their trial on three separate days; when they failed to appear after the third summons, their default was noted and the lords proceeded to judgement.[25] According to the Parliamentary Roll, the lords approached their task with “great pains and diligence”. They examined the thirty-nine articles over the course of several days and after “a good and thorough discussion” declared that fourteen of the thirty-nine articles were treason. Thereafter by “ due examination and by evidence and information by which they could anyway inform themselves”, they found the four defendants guilty on all the charges, including those not declared as treason.[26] On the basis of this formal account the parliamentary lords appear to have discharged their judicial duties responsibly and properly. However, some historians doubt the completeness of this account and they may have a point. The official version will undoubtedly have been sanitised for public consumption. Considering the magnitude of what the lords appellant were undertaking and their control over the proceedings, they are unlikely to have allowed it to include any error or controversial material which is pejorative to the justice and correctness of these proceedings. However, there are some independent chronicles that enable us to construct a fuller narrative of events and the quality of justice dispensed. I shall come to back to this point after I have addressed the parliamentary declaration of treason.

The Treason Act of 1351 abolished common law treason.[27] From January 1352, English law only recognised two types of offence as treason i), those defined as treason in the Act and ii) offences declared as non-statutory treason by parliament.[28] While we cannot doubt parliament’s discretion to declare these articles as treason, a question mark remains about whether they exercised that power properly. The legislation does not fetter their discretion, nor do we know of any regulations or guidance governing the exercise of their discretion. As far as we know, it was entirely a matter for parliament to declare what is or is not treason, as they thought fit. It is also important to bear in mind that at this stage, the lords were simply determining the nature of the offences. They were not determining guilt or innocence. Nevertheless, as judges, the lords had a judicial responsibility to make a decision based on the evidence and the relevant law.

Since there was no prospect of appealing parliaments decision, even if they got the facts or the law, or both, wrong, it is of academic interest to consider whether they acted properly. That having been said there is no evidence that they got the law wrong in this case. We do not know what they said in their deliberations but it is possible to construct a working hypothesis of their reasoning and the factors that influenced their decision. For example, we can deduce from the fact that less than half of the articles were declared treason that they discriminated between the different offences. Furthermore, it is clear from their judgement that they distinguished offences of pure accroachment (not treason) from those with aggravating features (treason). The aggravating features that appear in most of the fourteen treasonable offences are: the appellees attempts to get the king to use armed force against the lords appellant; the appellees encouragement of Londoners to attack and kill the lords appellant; and by raising forces themselves, to destroy the lords appellant and the ‘king’s other of loyal lieges’. In the lords’ judgement these were the offences that most injured the king and his kingdom. They also considered that the appellees evil counsel was responsible for England’s unpreparedness for the threatened French invasion. Last, they thought that de Vere’s attempt to persuade Richard to make him king of Ireland, was to the prejudice of the kings’ allegiance from Ireland and therefore treason.[29]

The parliamentary lords (and the lords appellant) were probably aware of the precedent set by the accusations against the Despenser in 1326[30]. The father and his son were charged with accroaching royal authority and executed. The younger Despenser’s main offence was accroaching the royal authority by seeking advice from the king’s lawyers on how to best to prosecute Thomas earl of Lancaster for treason. The aggravating feature that made the offence treason was that he arraigned and convicted Lancaster ‘on the king’s record’ and (ultimately) had him executed.[31] As Lancaster was of royal blood, his execution without the king’s licence was a step too far. The allegation of accroachment was added to supplement the substantive treason. Professor Bellamy emphasises the wider significance of this very point. He has researched the relevant common law cases: “ A close inspection reveals that in fact the word’s ‘accroaching’ the royal power were used in the majority of instances merely to describe an accepted treason or felony and to afforce (sic) the gravity of the offence. In two cases only was there a danger of treason and accroaching the royal power being drawn together and confused. After the statute the practice ceased altogether. There has never been a case before the courts of common law wherein a man was sentenced for ‘accroaching the royal power’ by committing a crime which was not a felony or treason. It could not stand by itself.”[32] And there was also the example of Roger Mortimer’s treason trial in 1330. Based on Bellamy’s research and the Despenser precedent, and if my hypothesis is correct, there would appear to be little cause for concern about the lords’ understanding to the law as it was in the fourteenth, or their reasoning. Nevertheless, treason trials cannot be viewed in a legal vacuum. Political rivalry was the driving force of state treason trials during the fourteenth and the fifteenth centuries, especially during the reigns of dysfunctional monarchs. This was a political trial and frankly the outcome was pretty much a foregone conclusion. The law was only able provide a cloak of legitimacy for the purge of king Richard’s administration.

We get a feel for the atmosphere that pervaded parliament from two different accounts of the trial of Nicholas Brembre. The Parliamentary Roll account is pithy. He was produced for trial on the 18 February 1388 and arraigned. He pleaded not guilty and offered to prove his innocence in trial by battle but that was deemed inappropriate. The lords considered the matter by “all means required to the honour of God.” On the 20 February, Brembre was adjudged guilty and sentenced to a traitor’s death; he was drawn and hanged the same day. [33]

The Westminster Chronicler’s narrative is detailed and colourful. On being produced, Brembre asked for legal representation: that was refused. He requested to see a copy of the charges: that was also refused. He tried to respond to the charges as they were put to him but he was told he could only plead ‘guilty’ or ‘not guilty’. At this point the king tried to intercede on Brembre’s behalf; however, he was shouted down when dozens of MP’s threw down their gages as proof of Brembre’s guilt. A sub-committee chaired by the duke of York was set up to consider the matter. Shortly thereafter, York reported the committee’s conclusion that Brembre had done nothing to warrant death; this enraged the lords appellant and almost bought Gloucester and York to blows. It was difficult to know how to proceed, so members of the city guilds most affected by Brembre’s activities were asked to pronounce his guilt; they could not do so and were dismissed peremptorily. Eventually, the Mayor and the Recorder of London agreed when pressed that Brembre may have been ‘more aware than innocent’ of the treasons perpetrated by the other appellees. On these very thin grounds, Brembre was adjudged guilty of concealing treason. He was drawn and hanged the same day.

Even though, Brembre’s trial could not be considered fair in any century, the procedures adopted in 1388 were not unprecedented at the time. The refusal to allow him legal representation followed precedents set in state trials in 1376 and 1377 , and in 1381 when parliament decreed that defence counsel was not permitted in treason trials.[34] Neither was it unusual for the accused to be denied a copy of the charges in writing. It is true there was no consistency an arraignment. Some men were allowed to plead to the charges and offer there defence; others, like Brembre were simply required to plead guilty or not guilty. The condemnation of men unheard was not popular. Public opinion was in favour of allowing suspect traitors to answer the charges. In 1399, the commons in parliament petitioned that anybody accused of treason should not be condemned unheard. Henry IV did not consent to the petition[35].

Nicholas Brembre’s execution marked the end of the appeal proceedings, but not the end of the trials, or of the king’s humiliation. On the 2 March, the commons began impeachment proceedings against thirteen of his officials implicated in the appellees treasons. The impeachments began with the six judges who had denounced the work of the Wonderful Parliament. The king’s justices Robert Bealknap, Roger Fulthorpe, John Holt, William Burgh and John Carey together with John Lockton, sergeant–at-law, were charged that in response to the questions put to them on the law, they gave the king false answers that were not according to the law, and which gave ‘boldness and hardihood’ to the appellees. They were also charged with concealing their knowledge of the appellees treason. The justices’ defence that their answers were given under duress availed them little, since on the 6 March the lords adjudged them guilty of treason. They were sentenced to death, which was later commuted to life exile.

Thomas Usk and John Blake, the draftsmen of the ten questions were produced for their impeachment on the 3 March. They were charged with knowing the appellees treacherous intentions in having the questions drafted and put to the justices and with concealing their knowledge of the appellees treason. Their defence that they were only obeying orders made things worse. The next day, they were adjudged guilty on their own confession, and drawn and hanged. The last person to be impeached for his involvement in the denouncing of the Wonderful Parliament was the bishop of Chichester. He incited the justices’ ‘with threatening words’ to answer as they did and he did not reveal his knowledge of the appellees treasonous plans. The bishop denied the offence, saying he had done no more than tell the justices to answer according to the law. This was taken as a confession and not a defence and the offence declared as treason. The bishop was exiled to Ireland for life

Last, four knights of the king’s household were impeached on sixteen articles for their involvement in the appellees conspiracy. In broad terms their offences amounted to accroachment. The offences were declared treason and on the 5 March, Simon Burley, John Beauchamp, John Salisbury and James Berners were all convicted. And executed. It was the execution of Simon Burley that caused the king most anguish, since he was an old and faithful family retainer. He had served the king’s father and as Richard’s mentor. Both the king and the queen (in tears and on her knees apparently) begged for Burley’s life. Normally the grace of the king was sufficient to redeem a traitor’s life, but not in this time. The lords and the commons were obdurate: Burley must die. The only mercy shown to him was that he was granted a quick death by beheading. It was the most obvious and public humiliation for Richard.

Epilogue

By the end of the parliament, Richard’s authority counted for nothing and his prestige for even less. He was forced to acknowledge the limitations of his vision of kingship. It was a severe lesson that made him compliant for the next six or seven years: he had no choice. However, the political wheel turned in his favour. By the mid 1390’s, his confidence and authority were restored. Moreover, he acquired a personal military force capable of enforcing his will. Within a decade of the Merciless Parliament Richard moved to destroy Gloucester, Warwick and Arundel in his own ‘Revenge Parliament’ of 1397. Not only that, but in 1398 Mowbray and Derby fell out and were exiled Unfortunately, Richard mistook revenge for kingship; before the century was out, he had been deposed as ‘useless and unfit to rule’, and replaced by a Lancastrian king.

The Merciless Parliament is significant for two reasons. First, it triggered a chain of events that resulted in Richard’s deposition, thus changing the course of English history. Second, it was the first and most telling demonstration of how the law of treason could be manipulated for political ends. Kings and nobles were quick to see the benefits of the power given to parliament in the Treason Act, to extend the scope of treason beyond its statutory limitation. The appeal process and impeachment disappeared by the fifteenth century. They were awkward to use and the Lancastrian kings developed a much quicker, surer and more serviceable weapon for their needs: the act of attainder. That, however, is another story…

[1] The Treason Act 1351 (25 Edw. 3 Stat. 5 c.2): the ‘Great Treason Act’ is still the law today. It has been expanded, and modern law has replaced some of its medieval provisions; nonetheless, the Act itself has never been repealed and is as relevant today as it was six hundred and fifty years ago. See also JG Bellamy –The Law of Treason in England in the Later Middle Ages (Cambridge 1970) pp. 59-62 and 98-104; and Chris Given-Wilson (Gen Ed) – The Parliamentary Rolls of Medieval England (Boydell Press 2005): Volume 5, Mark Ormrod (Ed) pp.35, 44 for the medieval definition of treason. Richard II passed his own Treason Act in 1381 (5 Ric.2 c.6), which extended the scope of treason in response to the Peasants’ Revolt.

[5] Parliament needed convincing that the taxation previously granted was being well spent in the defence of the realm. Instead of addressing parliament’s concern Suffolk announced the king’s plan for leading an expedition to France; he asked for a ‘substantial grant’ but declined formally to say how much was needed. However, he ‘let slip’ a figure of four fifteenths and tenths, which was double the normal grant. The result was uproar!

[6] Saul pp.176-180: all three lords had cause to resent Richard’s court. Their influence within the government had diminished, particularly their warlike policy towards France, which the king had disregarded. Furthermore they harboured personal grievances against Richard for furthering the aspirations his personal favourites at their expense.

[7] Saul at p157; Suffolk’s sins were of omission and commission. He omitted to use the taxation previously granted by parliament wisely for the defence of the realm, or to do anything about implementing the commission of government. His sins of commission were various; for example, he purchased lands and sources of royal income “contrary to his oath and greatly in excess of his deserts”. There were other peculations specified in the indictment preferred against him. Suffolk pleaded the collective responsibility of the council in respect of his omissions and was acquitted. He was however, convicted on three counts of peculation, and imprisoned and fined.

[8] Saul at pp.157-164; Bennett at pp.27-28 (Citing Knighton at pp.353-388) and PROME, Vol 7, P32 (citing Knighton, ibid; St Alban’s Chronicle at pp.786-806; the Eulogium Historiarum at pp. 359-360 and the Westminster Chronicles pp. 166-186) all provide an account of the ‘Wonderful Parliament’. Gloucester and the bishop of Ely reminded the king that if he absented himself from parliament for forty days without good reason the members could disperse to their homes without granting the taxation he required. They pointed out to him the foolishness of carrying out his threat to seek aid from the king of France against his own subjects, since France was England’s greatest enemy and generations of Englishmen had fought and given their lives against France. It was, they said, the intolerable burden of taxation and the government’s incompetence that had bought matters to a head. Finally, Ely reminded him of ‘an ancient law’ whereby if the king alienated his people and did not keep the law of the land the people might replace him with another of the royal line. It was this allusion to the fate of Edward II that caused Richard to back down.

[9] See Saul at pp.173-175 for an analysis of the origin and nature of the ten questions put to the judges; see also PROME Vol 7, pp. 92-93 for their precise wording, including the judges’ answers. There is no satisfactory explanation for why two meetings were necessary (McKistay at p.448, n.2).

[11] Bellamy at p.112, and n.2; Bellamy provides an authoritative analysis of the judges construction of the law. The actions of the Wonderful Parliament amounted only to accroaching royal authority, a charge that was incapable of standing as treason by itself. In those treason trials where accroaching was alleged, it has always been as an additional count to a substantive treasonable offence such as, for example, compassing the king’s death and accroaching royal authority.

[12] Saul, ibid: it is not clear who leaked the information to Gloucester and his allies. The judges suggested that was the earl of Kent. However, the Westminster Chronicle (p.206) says it was the archbishop of Dublin.

[16] During the course of the trial Tresilian was betrayed by his servant and seized from his sanctuary in Westminster Abbey

[17] See Bellamy at pp.23-54 for comprehensive case-by-case analysis of the origins of the English state trial in the thirteenth century. The trials of the Welsh rebels David ap Gruffydd (1283) and Rhys ap Maredudd (1292), and the trial of the Scottish nationalist William Wallace (1305) are the most famous examples of this type of trial. They were all heard by the English parliament as being the king’s high court and therefore possessing the gravitas and authority to try such serious offences of treason against the king’s royal person. By bringing the appeal before parliament, the lords appellant were following a well-trodden procedural path in accroaching cases. In 1330, Roger Mortimer and many of his retainers were indicted, tried and condemned by the lords in parliament for treason, which included allegations of ‘usurping royal power.’ The impeachment trials of 1376 were tried by parliament and in 1386 Suffolk had been tried and impeached by parliament. There is clear legal authority for a case of this type to be tried in parliament and for the judicial authority of the lords.

[18] R G Davies and J H Denton (Eds) – The English Parliament in the Middle Ages (Manchester 1999 edition) at pp.43-50 contains a summary of parliament’s development as a high court of justice in the fourteenth century; S B Chrimes – English Constitutional Ideas in the Fifteenth Century (Cambridge 1936) at p.71 also attests to parliaments enduring function as the ‘king’s high court’ from the outset. Nicholas Pronay and John Taylor – Parliamentary Texts in the Later Middle Ages (Oxford 1980) at pp.36-37; whilst acknowledging the lords’ judicial function, Pronay and Taylor note that parliament ‘as a whole’ was not predominately a court of law since the commons of parliament had no judicial powers.

[20] Saul, p.192, n.66 speculates about the judges and lawyers’ meaning. They cannot have meant that the appeal method did not belong to the common law per se since, as Saul points out, it was the standard procedure for instituting proceedings in the courts of common law. Furthermore, it is inconceivable that they were referring the fact that none of the charges met the statutory definition of treason since the judges and the other lawyers well knew that the Treason Act of 1352 conferred a statutory discretion on the lords in parliament to declare whether or not doubtful cases were tantamount to treason.

[25]. The procedure of calling an absent defendant on three separate days is still used today. If he or she fails to appear on the third occasion, the trial can proceed in their absence. However, the prosecution still has to prove the defendant’s guilt to a jury with evidence that satisfies the criminal standard of proof (‘so that you are sure’, or ‘beyond a reasonable doubt’) before he or she can be convicted.

[28] In the parliament of 1351-52, it was recognised that offences might occur that seemed to be treason but which fell outside the statutory definition. In such cases, justices were not to proceed to judgment until they had referred the matter to parliament for a declaration whether the offence was treason or a felony. The procedure envisaged seems to have been that once parliament had made the declaration the case would be remitted to the lower court for a trial by a judge and jury on the facts. See Bellamy pp.180-81, citing Rezneck- Eng Hist Rev XLII, pp. 473-513) According to Rezneck’s research only one case followed this procedure between 1352 and 1500!

[30] The relevance of this case to parliament in 1388 is that Gloucester (like Lancaster in 1326) was a royal duke.

[31] ‘On the kings record’ means on the word of the king without any corroborating evidence. It applied to treasons that were actually witnessed by the king. In such cases English law presumed the king’s word to be the perfect evidence as it was above reproach and nothing else was needed to convict the accused.

An argument has arisen for and against using vellum for recording our laws, as stored on the amazingly full shelves of the Act Room. Paper is indeed more perishable. Just imagine having the Magna Carta on paper! How insignificant it would appear. Not insignificant in content, of course, but all the same…

I have seen the magnificent charter that Richard III granted to the City of Gloucester. It is quite exquisite, and so vivid and crisp after all this time that it might have been signed and sealed only a few years ago. If it had been on paper, it would certainly not look the same.

So, vellum or paper? In the long run, given that vellum lasts 5,000 years or more, I guess the vellum has my vote. I know there are all sorts of reasons and sensibilities against it, but I’m still in favour of its continued use. It would have been used for the Lindisfarne Gospels, Domesday Book, Magna Carta, Edward I’s Treason Acts, de Heretico Comburendo, Titulus Regius, Richard’s bail laws and Henry VIII’s attainder against the insane Viscountess Rochford.